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2007 DIGILAW 476 (PAT)

Ghosh Yadav v. State Of Bihar

2007-03-07

MADHAVENDRA SARAN, SHIVA KIRTI SINGH

body2007
Judgment Shiva Kirti Singh and Madhavendra Saran JJ. 1. Both these appeals are being heard and disposed of by this common judgment because they have been preferred by the same appellant against the same judgment, one through his counsel and another directly from the jail. 2. Heard Mr. Rajesh Kumar, learned counsel for the appellant appointed by this Court to appear as amicus curiae as the Advocate who earlier appeared for the appellant chose not to appear in these appeals. Even after service of notice the appellant did not appear nor appointed another Advocate. 3. These appeals are against judgment and order of conviction of the appellant for offence under Sec. 302/364 and 201 of the IPC vide judgment dated 25.9.1987 passed by learned Additional Sessions Judge-X, Patna in Sessions Trial No. 215 of 1987. 4. The First Information Report of this case was lodged by PW-3, Chaukidar, Firdaus Alam against unknown person when on information from someone he found a headless body in a field at village, Chakmusa, PS- Phulwari, District-Patna. Subsequently, the case was investigated by the 1st I.O., PW-10, Pratap Shankar Sinha and later by 2nd I.O., Ramanand Ram, PW-11. During investigation it transpired that the headless body was that of one Sandeep Kumar Yadav, son of PW-8, Jata Gope and according to the prosecution case on 8.1.1985 this appellant had come to the house of the deceased and left with him on a bicycle for village, Chakmusa where the appellant resides. It is further case of the prosecution that PW-4, Ram Sewak Prasad, a cousin of the deceased and PW-5, Sita Pati Devi, a neighbour of the deceased had seen the appellant going with the deceased. According to PW-4, he had seen them on the way to village, Chakmusa and according to PW-5, the deceased had asked her to inform his father that he was leaving with the appellant for village, Chakmusa. It appears that during investigation PW-11, the 2nd I.O. recorded further statement of PW-8 as well as statement of wife of appellant (PW-2), Raj Kumari Devi and father-in-law of the appellant, PW-1, Moti Yadav. From the evidence of PW-11 it appears that these witnesses supported the case of the prosecution and disclosed circumstances against the accused and on that basis charge sheet was submited against the accused-appellant. 5. From the evidence of PW-11 it appears that these witnesses supported the case of the prosecution and disclosed circumstances against the accused and on that basis charge sheet was submited against the accused-appellant. 5. It appears that in course of trial the accused appellant denied the charges and after trial he was convicted as noticed above and sentenced to Rl for life for the offence under Sec. 302 IPC. No separate sentence was awarded under other Sections. 6. On behalf of appellant it has been submitted that there is no eyewitness of the alleged occurrence and he has been convicted only on the basis of circumstances which have been corroborated or supported only by interested witnesses and not by any independent witnesses. 7. Understandably PWs-1 and 2 who are father-in-law and wife of the appellant have not supported the prosecution case in Court and have been declared hostile. But it appears from their cross-examination by the prosecution and the deposition of PW-11 the 2nd I.O. that PW-2 had supported the prosecution case by stating several facts including the fact that she had left her husbands village due to threat given to her. PW-11 has deposed that he took statement of PW-2 at her fathers village, Badalpura. The Trial Court has taken note of the entire facts taken in cross-examination of PW-2 as well as relevant statement made in that regard by PW-11. 8. PW-4, Ramsewak Prasad and PW-5, Sita Pati Devi have deposed that on the date of occurrence they had seen the deceased going with the accused-appellant on a bicycle towards village, Chakmusa, the place where the dead body was ultimately found. No doubt, it has been stated by PW-10, the first I.O. that he had not recorded the claim of these witnesses that they had seen the deceased going with this appellant but the Court below has placed reliance upon these witnesses finding them natural and trustworthy. The claim of PW-5 who is an independent witness has been supported by PW-8, Jata Gope, the father of the deceased that she disclosed to him in the evening hours that the deceased had left with the appellant on a bicycle for village, Chakmusa. The claim of PW-5 who is an independent witness has been supported by PW-8, Jata Gope, the father of the deceased that she disclosed to him in the evening hours that the deceased had left with the appellant on a bicycle for village, Chakmusa. PW-8 has further disclosed in his evidence that he went to make enquiry at the house of the appellant but he found the house locked and the appellant was missing PW-11, the second I.O. has deposed that after recording the statement of some of the witnesses such as PW-1, PW-2 and Jata Gope (PW-8) he obtained processes and warrant of arrest of the accused and arrested him on 21.11.1986 from near a canal at village, Kurji. The dead body had been found on 9.1.1985 and the occurrence had allegedly taken place in between 8 and 9th January, 1985. 9. On behalf of the appellant it was submitted that the two motives alleged by PW- 8, Jata Gope that the appellant had taken a loan of Rs. 2000/- for which the deceased who happend to be Saarhu of the appellant had given him reminders and that wife of the appellant had gone to see cinema with the deceased which caused annoyance to the appellant were not stated by PW-8, before PW- 10, the first I.O. However, such motive was disclosed by PW-8 before the 2nd I.O. PW-11. In fact, on a careful consideration of facts and circumstances if appears that the first I.O. had not conducted the investigation properly and it also appears that at the initial stage since PW- 8 had lost his only son, he was not comprehending relevant facts properly and subsequently from the materials and circumstances the witnesses realized the significance of all the facts including differences between the deceased and the appellant although both were relations. It is the second I.O. who made efforts and recorded statement of PWs-1 and 2 as disclosed by him in Court, PW-2 had given out the details how the deceased had gone to the village of the appellant and had been kept out of house at some other place and in the night the accused-appellant had gone out with a sharp cutting instrument and later he warned PW-2 not to disclose such facts to anyone. 10. 10. On a careful consideration of the deposition of PWs-4, 5 and 8 it is found that they are trustworthy and reliable. PW-5 is an independent witness and otherwise also in a case of present nature when the appellant is also a relation of the deceased, there appears no good reason as to why even the relation witnesses like PWs-4 and 8 would make any attempt to falsely implicate the accused-appellant. From their evidence it is established that :- (1) the appellant had taken the deceased with him on a bicycle towards his village, Chakmusa. He was the last man seen with the deceased and the body was recovered from a field of village, Chakmusa. (2) there were differences between the accused-appellant and the deceased who were relations but the differences were of sensitive nature including reminder for earlier loan and annoyance because the deceased had gone to cinema with wife of the accused-appellant as she happend to be his Saali, though not directly. (3) According to PW- 8 and aiso according to PW-11 the accused- appellant was found missing from his house soon after the occurrence and he could be apprehended after several months from another place in village, Kurji. 11. On the basis of aforesaid findings and circumstances, we find that the Trial Court rightly convicted the appellant of the charges labeled against him. We find no legal or factual infirmity with the impugned judgment or the sentence so as to interfere with the same. Hence the conviction of the appellant is confirmed. The appeals are accordingly, dismissed. 12. The bail bond of the appellant shall stand cancelled and he should be taken into custody so that he may serve the remaining sentence in accordance with law. 13. Counsel for the appellant who has appeared as amicus curiae may be paid his fees by the High Court Legal Aid Committee in accordance with its rules.